U6 



< 357 
J6 
Dpy 1 



COMMITTEE ON THE PUBLIC LANDS 
HOUSE OF REPRESENTATIVES 



LOCH-KATRINE BIRD RESERVATION 






CORRESPONDENCE BETWEEN 

HON. F. W. MONDELL 

CHAIRMAN OF THE COMMITTEE ON THE PUBLIC LANDS 
OF THE HOUSE OF REPRESENTATIVES 

AND 

DR. T. S. PALMER 

IN CHARGE OF GAME PRESERVATION, BIOLOGICAL 
SURVEY, DEPARTMENT OF AGRICULTURE 

RELATIVE TO EXECUTIVE AUTHORITY 

FOR THE RESERVATION OF LANDS 

AS BIRD PRESERVES 



WASHINGTON 

GOVERNMENT PRINTING OFFICE 

1909 



s^ 



^51 



909 



D. or 0. 






LOCH-KATRINE BIRD RESERVATION. 



[No. 961.] 

EXECUTIVE ORDER. 

It is hereby ordered that all of the lands embraced withm the 
meander survey of a reservoir site located in what is commonly 
known as the Oregon Basin, embracing five thousand five hundred 
acres, more or less, in section five, township fifty-one north, range 
one hundred west, and sections nineteen, twenty, twenty-one, 
twenty-two, twenty-seven, twenty-eight, twenty-nine, thirty, thirty- 
one, thirty-two, thirty-three, and thirty-four, township fifty-two 
north, range one hundred west of the sixth principal meridian, 
Wyoming, together with a strip of land fifty feet wide adjoining said 
meander survey on the outside and surrounding said reservoir site, 
as the said reservoir site appears upon the map of the Shoshone 
River canal, on file in the General Land Office, approved March 
13, 1903, and as the same is shown by the broken line upon the 
diagram hereto attached and made a part of this order, are hereby 
reserved, subject to valid existing rights, and set aside for the use of 
the Department of Agriculture as a preserve and breeding groimd 
for native birds. The taking or destruction of birds' eggs and nests, 
and the taking or killing of any species of native birds for any purpose 
whatever, except under such rules and regulations as may be pre- 
scribed by the Department of Agriculture, is prohibited, and warning 
is expressly given to all persons not to commit any of the acts hereby 
enjoined. This reserve to be known as the Loch-Katrine Reserva- 
tion. 

Theodore Roosevelt. 

The White House, Odoher 26, 1908. 



United States Department of Agriculture, 

Bureau of Biological Survey, 

Washington, D. C, January 5, 1909. 

Hon. F. W. MONDELL, 

Chairman Committee on the Public Lands, 

House of Representatii)es. 
Dear Sir : In compliance with the request contained in your letter 
of January 2, I inclose herewith another copy of Executive Order No. 
961, establishing the Loch-Katrine Reservation in Wyoming. 

In reply to your inquiry concerning the authority for the establish- 
ment of the reservation, I beg to say that these bird refuges, like 

3 



4 LOCH-KATRINE BIRD RESERVATION. 

other federal reserves established by executive order, are simply res- 
ervations of pubHc land for pubhc use. They differ in purpose, 
though not in principle, from reservations established for military 
purposes, naval stations, light-house sites, sea otter reserves, reindeer 
stations, and other pubhc uses. So far as I am aware, no specific act 
exists providing for the estabhshment. of such reservations. They 
have been created by authority of the President in accordance with 
a practice„whicli dates back to the earhest history of the Governrnent 
and which has been repeatedly approved by Congress and sustained 
by decisions of the Supreme Court. Among the decisions bearing on 
this point may be cited: Wolcott v. Des Moines Co. (5 Wall., 688), 
Grisar v. McDoweh (6 Wall., 363), and Wolsey v. Chapman (101 
U. S., 755). 

In Grisar v. McDowell, involving the reservation of a tract of land 
in the city of San Francisco for militaiy purposes, the Supreme Court 
declared : 

From an early period in the history of the Government it has been the practice of 
the President to order, from time to time, as the exigencies of the public service 
required, parcels of land belonging to the United States to be reserved from sale and 
set apart for public uses. 

The authority of the President in this respect is recognized in numerous acts of 
Congress. Thus in the preemption act of May 29, 1830, * * * in the preemption 
act of September 4, 1841, * * * the act of March 3, 1853, providing for the survey 
of the public lands in California. * * * 

The action of the President in making the reservations in question was indirectly 
approved by the legislation of Congress in appropriating moneys for the construction 
of fortifications and other public works upon them (p. 381). 

This question is fidly discussed in an opinion of the Attorney- 
General submitted to ithe Secretary of the Interior regarding the 
Southern Pacific Railroad grant (16 Op. Atty. Gen., 87), and more 
recently in an opinion submitted by the Assistant Attorney-General 
to the Secretary of the Interior on June 17, 1890, regarding reserva- 
tions in Alaska. 

I may add that Congress has indirectly approved the establish- 
ment of these bird reservations in the act of June 28, 1906, ''To protect 
birds and their eggs in game and bird presences," by prohibiting the 
capture of birds or the taking of eggs ''on any lands of the United 
States which have been set apart or reserved as breeding grounds 
for birds by any law, proclamation, or executive order." (34 Stat., 
536.) 

Respectfidly, T. S. Palmer, 

In Charge of Game Preservation. 



January 26, 1909. 
Mr. T. S. Palmer, 

In Charge of Game Preservation, 

Bureau of Biological Survey, Washington, D. C. 
Sir: I have the honor to acknowledge receipt of your letter of 
January 5, in reply to a request contained in my letter of January 2, 
in which I made inquiry concerning the authority for the establish- 
ment of the Loch-Katrine Reservation, and I note that you say that 
"these bird refuges, like other federal reserves established by execu- 
tive order, are simply reservations of public land for public use." 
You state further that " they differ in purpose, though not in principle 



LOCH-KATRINE BIRD RESERVATION. 

from reservations established for military pm'poses, naval stations, 
light-house sites, sea-otter reserves, reindeer stations, and other public 
uses." You also state that so far as jou are aware "no specific act 
exists providing for the establishment of such reservations," but that 
"they have been created by authority of the President in accordance 
with a practice which dates back to the earliest history of the Gov- 
ernment and which has been repeatedly approved by Congress and 
sustained by decisions of the Supreme Court." 

I note that in the closing paragraph of your letter you say : 

I may add that Congress has indirectly approved the establishment of these bird 
reservations in the act of June 28, 1906, "To protect birds and their eggs in game and 
bird preserves." 

I have very carefully considered the statements contained in your 
letter, have read the decisions to which you refer, as well as the act 
of Congress title of which you quote, and I must say that I am utterly 
unable to agree with your conclusions as to executive authority 
touching the matters referred to, nor do I find support for the views 
you express in any of the authorities to which you refer. 

Before entering on a discussion of the question as to the limitations 
of executive authority so far as it pertains to public lands, I desire 
to call your attention to the fact that the lands described in Executive 
Order "No. 961, known as the Loch-Katrine Reservation, are not 
public lands, and therefore could not be lawfully reserved by the 
President for any purpose whatever, even though the President had 
authority to create such reservations on public lands. 

The lands described in the above-mentioned order are, as stated 
in the order, a part of the right of way of the Shoshone River Canal, 
approved March 13, 1903. This right of way is a congressional grant, 
and the lands embraced within it have been definitely determined by 
the approval of a map of the same, and the title is vested in the 
owners of the Shoshone River Canal and subject to taxation and con- 
trol as any other land in private ownership in the State of Wyoming. 

Assuming for the sake of argument that the Executive has author- 
ity to establish reservations of this kind on public lands, surely no 
one will contend that any authority is vested in the Executive to 
create a public reservation on private land. If such an act as this 
were valid, then all the rights of way of all of the railroads in all of 
the pubhc-land States could be made bird refuges or ganie preserves, 
for those rights of way were granted under statutes simdar in all 
essential particulars to that under which the right of way in question 
was granted. 

I desire, however, to emphatically protest against the theory that 
the President or anyone else has authority to reserve public lands as 
bird or game refuges or as bird or game preserves, or for any such like 
purpose, and the decisions cited certainly do not warrant the view 
that the President has such authority. 

The case of Wolcott v. Des Moines Co. (5 Wall., 688) relates to 
reservations made by executive authority in accordance with the pro- 
visions of an act of Congress. The Congress had in 1846 granted to 
the Territory of Iowa, for the purpose of aid in the improvement of 
navigation on the Des Moines River, alternate sections of the pubhc 
lands in a strip of 5 miles in width on each side of the Des Moines 
River. The only question at issue was whether a certain tract of 
land, designated by executive authority in pursuance of law, was a 



6 LOCH-KATEINE BIED RESERVATION. 

portion of the land granted by the act of Congress for the purpose of 
enabhng the Territory to aid in the improvement of the Des Moines 
River. 

To hold that this decision offers the slightest excuse for the execu- 
tive act now under discussion is, it occurs to me, a most extraordinary 
torturing of the plain intent and effect of the decision. 

The extract from the decision in Grisar v. McDowell (6 Wall., 363), 
quoted by you in your letter, has, I realize, been repeatedly used as an 
excuse for the claim of executive authority to withdraw lands, but 
will certainly bear no such construction as that now placed upon it, 
for unquestionably in using the term "for public uses" the court 
had in mind public uses of the character of that for which the tract 
in question in the case before the court was reserved, to wit, for 
military purposes. 

No one has ever denied the right of the Executive to reserve land 
required for military purposes, for light-houses,-, or the like. In this 
case the question was. Did the Executive have the authority to set 
aside land for the military use of the Government? 

The integrity of the nation, the lives of its citizens may depend 
upon the reservation of land for military and light-house purposes. 
They are clearly public purposes, such as the court had in mind 
when it passed upon this case involving the title to a military reser- 
vation, but it has been held by high authority that the authority 
of the Executive to withdraw land even for military purposes is a 
limited one, as was very clearly pointed out by Secretary Lamar in 
the case of the Fort Boise Reservation (6 L. D., 16), in which a 
reservation was made by the War Department of more than the 
640 acres authorized by the act of Congress of February 14, 1853. 

The case of Wolsey v. Chapman (101 U. S., 755), to which you refer, 
is another case relating to the Des Moines River grant, and the reserva- 
tions made under that grant were clearly made by authority of Con- 
gress. The only question at issue was as to whether the lands in 
controversy were a part of the grant. The most strained and extrava- 
gant interpretation of this decision can not by any possibility torture 
it into a justification of executive withdrawals or reservations, con- 
fessedly not based on any act of Congress. 

I have examined with care the opinion of the Attorney-General 
submitted to the Secretary of the Interior regarding the Southern 
Pacific Railroad grant (16 Op. Atty. Gen., 87), to which you refer, 
I fuid that the opinion relates to a grant to the Southern Pacific Rail- 
road made by Congress. The question in controversy was whether 
the Secretary of the Interior had erred in withdrawing certain lands 
as being part of the grant. There is nothing whatever in the case 
touching the right or authority of anyone to withdraw lands without 
definite and specific authority of law. The Attorney-General calls 
attention to the fact that the Secretary of the Interior may in certain 
cases be in doubt "whether a greater or less amount (of land) should 
be withdrawn in order to protect the grants or comply with other 
legislation of the United States." There is no claim that this reserva- 
tion in question is made with a view of complying with legislation of 
the United States. 

I can not refrain from expressing surprise at the rather extraor- 
dinary statement in the last paragraph of your letter to the effect 
"I may add that Congress has indirectly approved the establish- 
ment of these bird reservations in the act of June 28, 1906,^' by pro- 



LOCH-KATRINE BIRD RESERVATION. 7 

hibiting the capture of birds or taking of eggs ' ' on any lands of the 
United States which have been set apart or reserved as breeding 
grounds for birds by any law, proclamation, or executive order." 

I happen to be well acquainted with the history of the legislation 
in question, and instead of being held by the executive departments 
as approving directly or indirectly anything that may have been 
done prior to the passage of the act, it should have been accepted 
by the executive departments as clearly indicating the determina- 
tion of Congress not to authorize the creation of any such reserves. 

The first section of the bill as introduced by Mr. Lacy was as follows : 

Be it enacted by the Senate and House of Representatives of the United States of America 
in Congress assembled, That it shall be unlawful for any person to hunt, trap, capture, 
willfully disturb, or kill any bird of any kind whatever, or take the eggs of such birds 
on any lands of the United States which have already been or may hereafter be set 
apart or reserved as game preserves or breeding grounds for birds by any law, procla- 
mation, or executive order, except under such rules and regulations as may be pre- 
scribed from time to time by the Secretary of Agriculture. 

It will be n( ted that this bill, had it become a law as introduced, 
would have authorized the reservation of lands as bird and game pre- 
serves, but as the bill became a law, all of that portion which I have 
italicized and which would have authorized the reservation in ques- 
tion was stricken out. 

As a member of the committee that reported the bill I recall very 
clearly the discussion in the committee on the subject, and how ear- 
nestly Mr. Lacy, chairman of the committee, plead for the passage 
of the bill, and how, after it was amended by striking out all that 
portion which would authorize the reservation of lands for the pur- 
pose contemplated, the bill was only reported on the earnest plea 
of Mr. Lacy that there were only six reservations, the names, loca- 
tion, and extent of which were given, which it would affect, all of 
which were small islands, the largest containing about 28 acres. As 
stated by Mr. Ijacy in his report, "All these islands are small in size, 
low, swampy, or rocky, and of no value f ( r agricultural purposes." 

It was admitted that these refuges had been established without 
authority of law, and that therefore there was no way of protecting 
the birds upon them, but on the plea that they were small, rocky, 
and uninhabitable, and on the distant coasts of the United States, the 
bill was finally reported out of the committee in the belief that while 
it would make it possible to protect the birds on the small outlying 
islands referred to it would also serve as notice to the executive 
departments that Congress would not authorize the setting aside of 
further lands for these purposes, as is clearly indicated in the last 
paragraph of the report on the bill, in wliicli Mr. Lacy stated that the 
matter of providing for other reservations was under consideration 
by Congress in several bills. 

Had the members of the committee reporting the bill to Congress 
had any idea that the view expressed in your letter would be held by 
the executive departments, it is safe to say that the bill would never 
have been reported, much less passed. Clearly' the act will not bear 
the strained construction you now place upon it, but that construc- 
tion is certainly a splendid object lesson to legislators to be careful not 
to seem to condone executive action, in excess of authority, lest it 
be warped into an excuse for further unlawful acts. 

There is one feature of this matter which your department seems 
to have entirely overlooked in the search of authorities in the hope 



8 LOCH-KATRINE BIKD RESERVATIO 



LIBRftRY OF CONGRESS 



002 895 771 3 



of finding decisions which would warrant the acti 
taken, and that is, that the Supreme Court of the United States had 
decided that the Federal Government has no authority over or 
right to regulate the taking of game within a State. This doctrine 
does not re^t on any strained or fantastic interpretation of decisions, 
but has been clearly laid down in two cases by the Supreme Court. 

First. In the case of Geer v. Connecticut (161 U. S., 519), in 
which the question of the control of the State over the game within 
its borders was elaborately discussed, the court said, referring to 
the power of regulating the taking of game: "For the purpose of 
exercising this power, the State, as held by this court in Martin v. 
Waddell (16 Pet., 410), represents its people, and the ownership is 
that of the people in their united sovereignty." The court then 
goes on to quote with approval a decision of the supreme court of 
California to the effect that "the wild game within a State belongs 
to the people in their collective sovereign capacity," and also a 
decision by the supreme court of Minnesota to the effect that owner- 
ship of game is in the State in its sovereign capacity as the repre- 
sentative of its people in common. 

In the case of Ward v. Race Horse (163 U. S., 505), a case in which 
the question at issue was as to whether the United States had authority 
by treaty to authorize the taking of game by Indians from a region 
which subsequent to the ratification of the treaty was included witliin 
the boundaries of a State, in violation of the state game laws, the court 
held emphatically that the Federal Government had no such authority ; 
that the State was sovereign and absolute in its control over the game 
within its borders. Among other things the court said: "The power 
of a State to regulate and control the taking of game can not be 
questioned." 

The court rejected the argument that the treaty conferred the right 
to hunt "when the United States had called into being a sovereign 
State, a necessary incident of whose authority was the complete power 
to regulate the killing of game within its borders." After citing the 
fact that the act which admitted Wyoming into the Union expressly 
declared that the State was admitted into the Union on an equal foot- 
ing with the original States, the court referred to the claim that the 
Federal Government has the right to regulate the taking of game 
within the State as irreconcilably in conflict with the power of the 
State. 

I most earnestly urge your careful consideration of these decisions, 
which are voluminous, exhaustive, definite, and controlling, and 
make it clear that the executive order in question is in direct confhct 
with the decisions of the Supreme Court above cited, and an 
attempted invasion of the rights of the State, inasmuch as it ex- 
pressly enjoins, warns against, and attempts to prohibit acts which 
are entirely legal and lawful under the state law. 

In conclusion, I desire to dissent most emphatically from the 
views expressed in your letter and to register my protest against the 
order in question, or any like orders, as being without authority of 
law, beyond and in excess of executive authority, in violation of the 
rights of the States and their citizens, and in direct conflict with the 
decisions of the Supreme Court of the United States. 
Very respectfully, yours. 

F. W. MONDELL. 





LIBRARY OF CONGRESS 



llili 111 ill|llllilll!ii|l:llMilliiimiHiii»ii" ^ 

002 895 771 3 • 



